We have laws and courts to rule on right and wrong; why do we need a process like mediation?
From childhood, we are taught that once a conflict becomes too hard for us to resolve, we should turn to an authority for a solution. As children, this authority was our parents or teachers who could step in to pass judgement on what should be done to set things right. As adults, we look to the legal system, sure that the court will make a clear ruling on right and wrong and thus resolve a conflict that is too difficult for us.
The rule of law has been central to the development of all stable societies. Surely these same principles and structures can be relied on to find the right solution for any injustice that we might experience. This seems appealing because it seems to promise closure with a final ruling as well as maybe even vindicate our position and recognize that we were right all along.
Unfortunately, these expectations are often not met; at least one, and often both, of the parties go away badly disappointed. The judgement seldom aligns with the parties’ wishes, and as they have limited input into the decision, it is common for everyone to leave the process feeling aggrieved. Added to this, legal fees are substantial, and the wait to get before a judge can be long, escalating the tension of unresolved issues. This dynamic is particularly damaging to those with family disputes—especially children caught between beloved parents.
Then there are all those situations that simply don’t qualify for a legal remedy yet have great impact on our lives. In one case that was recently brought to Dialogue and Resolution Services as a candidate for mediation, friction between neighbours had already resulted in the police being called by both parties at various times without any legal cause being found for court action. As you may imagine, the anxiety and upset of both parties grew each time the police were called and could offer no remedy. Eventually, the simple issue of a discrepancy in inches of fence placement grew to consume the emotional energy of two families. In fact, by the time mediation was examined as a possibility, the animosity was so entrenched that the parties could not agree to even meet to look for solution together. It is likely that this conflict will continue to grow until something happens that merits criminal charges.
Contrast this with the outcome of another case that was recently resolved to the satisfaction of all parties with the assistance of mediation through DRS; that of two work colleagues locked into a cycle of escalating accusations and anger. While the issues at stake were not severe enough to allow for legal recourse, but the two disputants were in frequent contact, ensuring that the issues remained hotly present. If a balance was not restored that would allow these two to work together in comfort and mutual respect, the negative impact of the grievances would persist and become increasingly toxic, affecting all in the workplace.
In this case, a difference of opinion arose in regard to how to best manage a task and was further complicated by communication that left both feeling misunderstood and undervalued. Clearly there is nothing in tort or criminal law that covers such situations, but mediation does not rely on statutes and is available to assist in any situation where disputes are having a negative effect. Further, while the courts concern themselves with only the objective facts of a case, mediation directs much focus to the subjective reality for those locked in the conflict.
In mediation, these co-workers were given a structure and guidance to come to a clearer understanding of the nature of their dispute. Through questioning aimed at exploring the nature of the problem from both perspectives rather than seeking to assign blame, they could build a clearer picture of what an acceptable outcome might look like. This gave them the tools they needed to create their own solution; one that respected the experience of both parties and established an understanding of how they might move forward productively.
Importantly, while the mediator helped to clear a path to this desired end, it was the disputants themselves who found a way to address what had happened and agreed on principles to strengthen their working relationship. Having crafted the agreement themselves, the parties had ownership of it, ensuring compliance and success. In fact, sometime later, they report that they now work together comfortably, and can laugh about their different perspectives.
So, not only does mediation offer a resource to assist us through those disputes which the law is not designed to deal with, it also offers an empowering opportunity to collaboratively find answers that respect the subjective realities of all parties. This builds a foundation for reestablishing trust and positive relationship.
Where then, does working through mediation offer advantage over recourse to the courts? Where the conflict is not “legal” in nature. Where the preservation of relationship is of significant value- for example in family law cases. Where a timely solution is of benefit. Where disputants feel it important that they be heard and have a real say in the outcome. Taken together, this suggests that mediation is an appropriate direction to take for many of the conflicts that we encounter.
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Ian Brown is a school teacher with training in mediation; he volunteers with Dialogue and Resolution’s newsletter.